Brodie v Commonwealth of Australia

[1999] NSWSC 423

CITATION:	Brodie v Commonwealth of Australia [1999] NSWSC 423 revised - 23/08/99
CURRENT JURISDICTION:	Common Law Division
FILE NUMBER(S):	20187/97
HEARING DATE(S):	12 March 1999
JUDGMENT DATE:	17 May 1999
PARTIES :	David Andrew Brodie v Commonwealth of Australia
JUDGMENT OF:	Master Harrison

COUNSEL :	Mr Letherbarrow (Plaintiff) Mr C Ktenas (Solicitor) (Defendant)
SOLICITORS:	Mr David M Stack Stacks Taree (Plaintiff) Mr C Ktenas Australian Government Solicitors
CATCHWORDS:	Extension of time - Limitation of Actions Act 1958, Victoria
ACTS CITED:	Limitation of Action Act 1958 (Victoria) The Choice of Law (Limitation Periods) Act 1993 Limitation of Actions (Personal Injury Claims) Act 1983
CASES CITED:	Hickey v Women's and Children's Health Care Network (unreported, 11 June 1998, Supreme Court, Victoria) Mason v Mason [1997] 1 VR 325 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1
DECISION:	Paras 20 & 21

19

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

MONDAY, 17 MAY 1999

20187/97 - DAVID ANDREW BRODIE v COMMONWEALTH
OF AUSTRALIA

JUDGMENT (Extension of time - Limitation of Actions

Act 1958, Victoria)

1 MASTER: By notice of motion filed 10 March 1997 the plaintiff seeks an extension of time within which to commence proceedings. The accident for which the plaintiff seeks the extension of time occurred on 2 November 1972 at Bendiana Army Barracks in the State of Victoria. The orders sought were opposed. The plaintiff relied on his affidavits sworn 26 September 1996 and 2 April 1998 and the affidavits of his solicitor, David Maurice Stack sworn 15 October 1997 and 11 March, 1999. The defendant relied on the affidavits of Con Ktenas sworn 29 January 1997 and 20 March, 1997.
2 The plaintiff gave evidence and was cross examined and I formed the opinion that he was truthful and articulate. At times when the plaintiff was recounting his evidence he became visibly upset.
3 For the purposes of this application I find the following facts.

(1) The plaintiff was born on 31 July 1951 at Bega.

(2) On 5 July 1972 the plaintiff was conscripted into the Australian Regular Army as a National Serviceman. He was 17 years old.

(3) On 2 November 1972 the plaintiff’s platoon was sent on a route march. The plaintiff was lined up with other members of his platoon to board an army truck at Bendiana army barracks which is in the State of Victoria. There was a seat running along both sides of the truck and the soldiers boarded from each side of the truck. As each soldier boarded he sat on the rear of the seat on his side of the truck facing the next person. He then extended his right hand and took the right hand of the person behind to help him to step up onto the truck. The person behind placed one foot on the rear bumper bar of the truck which was about 4 feet above ground level and then stepped up onto the tray of the truck which was about 12 inches higher than the bumper bar.

(4) As the plaintiff stepped up onto the truck the person in front of him extended his right hand which the plaintiff gripped with his right hand. As the soldier took the plaintiff’s weight he lost his grip on the plaintiff’s wrist and as a result the plaintiff fell backwards. The plaintiff fell onto the rifle of the soldier immediately behind him. The barrel, the flash illuminator, the bayonet boss and the stock of the barrel penetrated the plaintiff’s body between his anus and his backbone. The plaintiff landed with his feet about 12 inches apart and was impaled on the soldier’s rifle. The plaintiff estimated that the rifle penetrated his body by 8 inches. After some time some soldiers grabbed him, lifted him up and pulled the rifle out. He experienced excruciating pain in his lower back and all the way down his legs and right up his spine to his head. He had difficulty breathing and lost movement in his arms and legs and was drifting in and out of consciousness.

(5) The plaintiff was taken to Wodonga base hospital, was admitted and remained in hospital for 3 weeks. The Army medical records relating to this accident are available. He was off work for one month following the accident. Since the accident the plaintiff has never been totally without back pain although for many years the pain was intermittent and he had difficulties sitting and standing. However he had no psychological concerns nor did he have problems with his bowel or bladder. His back condition improved over the next 12 months to 2 years. He was discharged from the Army in 1974.

(6) From 1974 to 1976 the plaintiff was employed as a constable in the Police force. Due to severe low back pain which also radiated down both his legs, he was placed on permanent light duties. As he did not join the Police force to become a clerk he resigned. He stated in his resignation that he had a bad back. The plaintiff’s employment records for this period exist. He did not have any psychological concerns.

(7) On 12 September 1978 the Repatriation Board advised the plaintiff that it was unable to relate the injury to his lumbar intervertebral disc lesion to his service incapacity. These records including the reasons for determination are available. The plaintiff, although he could not be sure, said that he may have seen a solicitor and it may have been on one or two occasions in relation to this accident but thinks it may have been when he lodged an appeal against this determination. He cannot now recall any advice that he received.

(8) Some time between 1976 and 1979 the plaintiff developed urinary problems. Dr Kidd told the plaintiff that his urinary problems were a result of a condition known as prostatitis and were brought on by stress. The plaintiff did not attribute the problem to his lower back as being caused in the accident. At this time he was operating a driving school. His urinary problems got worse and caused him much inconvenience. He was obliged to urinate every few minutes into a bottle and this discomfort together with his back problems forced him to leave the business.

(9) In 1980 the plaintiff was employed by African Lion Park at Warragamba. While the job was boring, he could relieve himself when he needed to “and the lions didn’t care”. In between 1980 and 1983 the plaintiff was employed by Glass Containers at Penrith as a process worker. He was sacked from this employment as he had taken too many days off work.

(10) In 1980 the plaintiff was referred to Dr Rochford. It was Dr Rochford who diagnosed that the plaintiff had a stricture high in the urethra near the bulb of the bladder and damage to his bowel as a result of his accident on 2 November 1972 and this was causing his urinary problems. When Dr Rochford admitted the plaintiff to hospital, the plaintiff decided that he could not live with the pain any more and if Dr Rochford told him the pain was caused by stress, it would not get any better and he would not be able to provide for his family. If he could not provide for his family in the future he decided he would commit suicide. However if there was a surgical solution, there would be a future. At this time he described himself as having a horrendous depression and stress caused by economic problems. I accept this evidence.

(11) In 1982 Dr Rochford wrote on the plaintiff’s behalf to the Department of Defence claiming compensation as a result of the injury to his urinary tract. On 14 March 1983 the Department of Defence wrote to the plaintiff and said that his claim for compensation had been determined and liability had been admitted under the provisions of the Act for a penetration wound of the perianal region sustained by him on 2 November 1972. He was disgusted by this letter and felt it did not come close to compensating him for the injuries he suffered in the accident. He did not receive any payments for compensation but he claimed his last hospital bills in relation to this claim.

(12) Since 1980 the plaintiff has undergone 22 operations in relation to his urinary tract. When he was a younger man he used to jump out of bed the next day. In the latter years the plaintiff is filled with dread if he knows that he has to have a further operation as recovery is more difficult.

(13) From 1988 to 3 April 1996 the plaintiff was employed by the Attorney General’s Department of New South Wales as a co-ordinator in the Community Justice Centre. In 1993 the plaintiff was instrumental in setting up the Hunter Community Justice Centre. He loved the work and considered himself one of the best in the world at large scale disputes. He believed he was a serious contender for the position of Director of Community Justice Centres in New South Wales upon retirement of the then incumbent.

(14) In mid 1994 the plaintiff’s health began to deteriorate and he began to suffer chest pains and numbness down the left side of his body. The urinary problems started to become more severe in that his urinary tract slowed down so that he had trouble urinating and it started to block up. The plaintiff knew that he needed to have another surgical procedure but was finding the prospect of yet another operation difficult to face as he dreaded straightening up, walking around feeling the pain of a half opened pen knife and not being able to urinate without screaming. His back deteriorated to the extent that he had to get out of bed at 4.00 am, take a bath at 5.00 am and take a walk in order to be physically able to get himself to work by 9.00 am. He began to have dreams which were becoming clearer and the images were like collages. He would relive the accident occurring, the trip to hospital and wake up in a sweat with his heart pounding. These vivid dreams occurred nightly. He would wake up and be scared to go back to sleep. The instant his head would hit the pillow these dreams with collage effect would begin again. He did not relate these collage effect dreams to the accident.

(15) In October 1995 the plaintiff consulted Dr Schmitman. Dr Schmitman confirmed that the plaintiff first consulted her on 20 September 1995. She diagnosed that the plaintiff was suffering from a chronic post traumatic stress disorder with associated anxiety and depression and it was her opinion that the plaintiff’s condition was related to the accident which occurred during his national service in 1972. The plaintiff described being shocked when he was told of this diagnosis. Dr Schmitman also says that the plaintiff’s prognosis in relation to his PTSD is poor, due to the severity of his condition, its long standing duration and the limited response to treatment so far. She said that it was likely that the plaintiff would remain permanently vulnerable to future stress and trauma, with possible exacerbations of his condition when under pressure. She believed that it was unlikely that the plaintiff would be able to resume working in paid employment in the foreseeable future.

(16) On 3 April 1996 the plaintiff was retired from his employment on the medical grounds of PTSD with major depressive illness.

(17) On 24 June 1996 the plaintiff sought legal advice from his current solicitors.

(18) On 23 September 1996 a statement of claim and notice of motion seeking an extension was filed in this court in proceedings No 20187/97. On 10 October 1997 the plaintiff discontinued these proceedings.

(19) On 10 March 1997 the plaintiff filed a statement of claim and the notice of motion seeking an extension of the limitation period.

(20) The plaintiff’s present condition is that he still has intermittent low back pain but it has deteriorated both in severity and frequency over the last couple of years. Whereas he previously had intermittent pain radiating down the right leg, he now finds that he has the pain radiating into that leg on a daily basis. He still has the urinary stricture problems which he understands will continue to require annual minor surgery and each time he has this surgery he may react more adversely to the anaesthetic which is becoming more difficult. The plaintiff is reliant on daily medication, Aropax to control his depression and despite the medication he is frequently in a state of depression. He suffers from nightmares on average every second night and has difficulty in sleeping and is constantly tired. He is unable to cope with stressful situations. He

is short tempered and irritable and is angry and frustrated at his inability to work and at the loss of opportunity to achieve the pinnacle of his career which would have been obtaining the position of State Director, Community Justice Centres.

4 The accident occurred at Bendiana army barracks in the state of Victoria. The parties agreed that the appropriate legislation was Limitation of Actions Act 1958 (Victoria) (as amended). It is my view that the Victorian law is the applicable law - see Miller v McKain (1991) 174 CLR and Stevens v Head (1993) 176 CLR 433. The Choice of Law (Limitation Periods) Act 1993 was passed in Victoria on 23 November 1993. Legal argument proceeded on the basis that ss 5(1A), (1B) and (1C) and 23A in the current form of that Act applied. However, the Limitation of Actions Act 1958 (Vic) has been significantly amended since 1958 namely in 1972, 1983 and 1989. This matter was heard on 12 March 1999. On 31 March 1999 the matter was relisted and it was drawn to the parties attention that the applicable legislation appeared to be s 5(1A), (1B) and (1C) and s 23A(1) as it appears in the 1972 Act and to give the parties an opportunity to be heard on this point. The parties agreed that the above was the applicable legislation and if they wished to draw my attention to any relevant 1989 amendments they should do so by 23 April 1999. No submissions were received.
5 Section 5(6) of the Limitation of Actions Act 1958 provided:

“(6) No action for damages for negligence nuisance or breach or duty (whether the duty exists by virtue or a contract or of provision made by or under a statute or independently of any contract or any such provision), where the damages claimed by the plaintiff consists of or include damages in respect of personal injuries to any person, shall be brought after the expiration of three years after the cause of action accrued.”

6 By virtue of the 1972 amendment (Act No 8300 of 1972) s 23A (the “old s 23A”) was introduced. It relevantly provided:

“Personal Injuries

23A(1)This section applies to a cause of action in respect of personal injuries whether or not the cause of action accrued or is claimed to have accrued before the commencement of the Limitation of Actions (Personal Injuries) Act 1972.

(2) Where on an application to a court by or on behalf of a person (in this section called “the claimant”) claiming to have a cause of action for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of a provision made by or under a statute or independently of any contract or any such provision) the damages claimed by the claimant consist of or include damages in respect of personal injuries to any person and it appears to the court that -


(a) any of the material facts relating to the cause of action -

(i) was not known to the claimant; and

(ii) would not have been known to the claimant if he had taken all reasonable steps in the circumstances of the case to ascertain all the material facts -

until a date later than two years after the cause of action accrued or is claimed to have accrued or, if the claimant was under a disability when the cause of action accrued or is claimed to have accrued, two years after the claimant ceased to be under the disability, whichever last occurred; and

(b) there is evidence to establish the cause of action apart from any defence founded on the expiration of the period of three years after the cause of action accrued-
the court may in its discretion order that the period within which an action on the cause of action may be brought be extended so that it expires at the end of one year after the date referred to in paragraph (a) or, provided that application was made to a court before the expiration of one year after that date, on such late date, if any, as is specified in the order.

(3) For the purposes of sub-section (2) “material facts” in relation to a cause of action include -


(a) the fact of the occurrence of negligence, nuisance or breach of duty on which the cause of action is founded;

(b) the nature of the wrongful act, neglect or default that constituted the negligence, nuisance or breach of duty;

(c) the identity of the person whose wrongful act, neglect or default constituted the negligence nuisance or breach of duty;

(d) the identity of the person against whom the cause of action lies;

(e) the fact that the negligence, nuisance or breach of duty caused personal injury;

(f) the nature of the personal injury so caused;

(g) the extent of the personal injury so caused; and

(h) the extent to which the personal injury was caused by the negligence, nuisance or breach of duty.”

7 This Act (No 8300 of 1972) came into operation on 1 January 1973 and would appear to be the applicable legislation governing this case where the cause of action accrued in 1972.
8 However ss 5 and 23 were further amended in 1983. Section (1A) was inserted and s 5(6) was repleaded by the Limitation of Actions (Personal Injury Claims) Act 1983 (Act No 9884 of 1983) which came into operation on 11 May 1983.
9 The transitional provision, section 11 of Act (No 9884 of 1983) provided:

“11. (1) The Acts amended by this Act shall apply as amended by this Act -

(a) to a cause of action arising not more than six years before the date of commencement of this Act; and
(b) to a cause of action arising on or after the date of commencement of this Act.

(2) The Acts amended by this Act shall apply as in force immediately before the commencement of this Act to a cause of action arising more than six years before the date of commencement of this Act.”

10 By virtue of s 11, these new provisions apply to causes of action not more than 6 years before 11 May 1983 ie., causes of action arising from 11 May 1977 onwards. The old provisions apply to causes of action arising before 11 May 1977. However, s 5(1B) and s 5(1C) were introduced in this Act.
11 Sections 5(1A), (1B) and (1C) provide:
“5(1A)[Negligence, nuisance, breach of duty]

An action for damages for negligence nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under a statute or independently of any contract or any such provision) where the damages claimed by the plaintiff consist of or include damages in respect of personal injuries consisting of a disease or disorder contracted by any person may be brought not more than six years from, and the cause of action shall be taken to have accrued on, the date on which the person first knows -
(a) that he has suffered those personal injuries; and
(b) that those personal injuries were caused by the act or omission of some person.
5(1B) [Application of sec 1A]

Sub-section (1a) as amended by the Limitation of Actions (Amendment) Act 1989 applies to each case where the date on which a person first knew the matters specified in paragraph (a) and (b) of that sub-section is within six years before the commencement of that Act.

5(1C) [Other law excluded]
Sub-sections (1A) and (1B) apply despite anything to the contrary in this or any other Act.”

12 The 1989 Act added in s 5(1A) the words “the cause of action shall be taken to have accrued on”. Section 5(1A) in its current form “deems” the cause of action to have accrued on the date of the knowledge - see Hickey v Women’s and Children’s Health Care Network (unreported, 11 June 1998, Supreme Court of Victoria). The result of these legislative changes is that the provisions of s 5(1A) are applicable. If the case falls outside s 5(1A) and if an extension of the limitation period is required, the old s 23A applies. This was the approach taken by Hedigan J in Hickey . Section 5(1A) provides that certain actions for damages can be brought within 6 years from the date on which the person who contracted the disease or disorder first knows that he or she has suffered those personal injuries and that they were caused by the act or omission of some person - see Mason v Mason [1997] 1 VR 325.
13 The plaintiff submitted that firstly he does not have to apply for an extension of time, secondly he does not have to apply for an extension of time in respect of the psychiatric injury as the plaintiff was unaware of this injury until 1995 and finally that once a new case is permitted to be started it can include the previous injuries without an extension of time. The plaintiff suffered injuries from the accident, physical injuries namely to the back, bladder and urinary tract and two psychiatric conditions namely PTSD and major depression. They are discrete injuries and should be treated separately. However, the plaintiff submitted that even an extension of time is not required should I make such an order.
14 I firstly turn to s 5(1A). After the plaintiff was discharged from the Army in 1974 he suffered from low back pain which also radiated down both his legs but did not have any psychological concerns. While employed in the Police service between 1974 and 1976 the plaintiff suffered severe lower back pain and was placed on light duties. In 1976 he resigned from the Police force citing problems with his back as the reason. However in 1978 the plaintiff lodged a claim for compensation with the defendant in relation to his lumbar intervertebral disc lesion. Hence it is my view that in 1978 the plaintiff was aware that he had a back injury which was caused by the defendant. In 1978 he first had the knowledge that satisfied s 5 (1A)(a) and (b) in relation to his back and an action should have been brought by 1984. In any event, it is unclear whether a back injury falls within the definition of disorder. It would not seem to be a disease. As the plaintiff’s claim was filed on 10 March 1997 his claim in relation to his back falls outside the provisions of s 5(1A).
15 Some time between 1976 and 1979 the plaintiff developed urinary problems and was diagnosed with a condition called prostatitis and though that this was caused by stress. In 1980 Dr Rochford diagnosed the plaintiff with a stricture high in the urethra near the bulb of the bladder and damage to his bowel as a result of his accident and this was causing his urinary problems. Dr Rochford wrote on the plaintiff’s behalf to the Department of Defence claiming compensation as a result of the injury. The plaintiff then sought compensation for his urinary tract problems and on 14 March 1983 the Department of Defence wrote to him stating that his claim for compensation had been determined and liability had been admitted under the provisions of the Act for a penetration wound of the perianal region sustained by him on 2 November 1972. By 1983 the plaintiff knew that his urinary tract problems were serious and this injury was related to the accident and he had until 1989 to bring an action for this injury. The plaintiff’s claim for injury to his bladder and bowel falls outside the provisions of s 5(1A). Again, it is unclear as to whether a stricture is a disorder. It would not seem to be a disease.
16 In 1980 the plaintiff admitted that he suffered from horrendous depression and stress caused by economic problems and not being able to provide for his family. He was having nightmares. I accept that prior to 1994 the plaintiff attributed his depression (which occurred mainly in 1980) to his inability to get work. By mid 1994 the plaintiff was aware that his health was beginning to deteriorate and he was suffering chest pains and numbness down the left side of his body. His urinary problems started to become more severe. His urinary flow was slowing and it was difficult for him to pass urine without screaming due to the pain. He knew he needed to have another surgical procedure but found the prospect of that difficult to face. He began to have dreams which became clear and the images were like a collage effect. He was reliving the accident, the trip to hospital and was waking up in a sweat with his heart pounding. These vivid dreams occurred nightly He was waking up scared and unable to go back to sleep.
17 In October 1995 at his consultation with Dr Schmitman the plaintiff became aware that he was suffering from PTSD with associated anxiety and depression which were likely to have been a result of his accident. This diagnosis came as a shock to the plaintiff. By April 1996 the plaintiff was aware that he suffered from PTSD with major depressive illness (t 22) and it was so severe that he would not be able to continue in employment. On 3 April 1996 the plaintiff was medically retired from his employment on the basis of PTSD with major depressive illness. I accept that in October 1995 the plaintiff first knew that he suffered from PTSD and major depression and that these conditions were related to the accident. As the plaintiff’s statement of claim and notice of motion were filed on 10 March 1997, the plaintiff's claim in relation to PTSD and major depression falls within s 5(1A). The plaintiff’s cause of action in relation to PTSD and major depression are deemed to have accrued in October 1995. The plaintiff had 6 years from October 1995 to bring an action. The statement of claim and motion were filed on 10 July 1997. The action has been brought within the period stipulated in s 5(1A).
18 Lest I be wrong in relation to the applicability of s 5(1A) I turn to consider s 23A in relation to the back and bladder injuries. This version of s 23A requires the plaintiff has to establish that pursuant to subsection 2(a)(i) and subsection 2(a)(ii) first that for more than 2 years after the accrual of the causes of action he wished to pursue, any of the material facts relating to the cause of action were not known to him and secondly that any such fact would not have been known to him had he taken all reasonable steps in the circumstances to ascertain the material facts. Once he has knowledge of the material facts he had to make an application to the court within one year for an extension of the limitation period. The accident occurred on 5 July 1972. The limitation period expired on 5 July 1975. Any knowledge must have been acquired after 5 July 1977. The plaintiff had to show that after 10 March 1996 (a date one year before he filed his notice of motion) a material fact relating to the cause of action was not known to him or would not have been known to him had he taken all reasonable steps in the circumstances to ascertain all the material facts. The notice of motion and statement of claim were filed on 10 March 1997. To be within the time period stipulated by s 23A the latest that the plaintiff could have commenced action was October 1996. This material fact falls outside the period stipulated by s 23A and the plaintiff’s claim fails. As I have previously stated by 1978 the plaintiff knew that he had suffered physical injury to his back and that it was caused by the accident because he had lodged a compensation claim against the defendant which linked the back injury to the accident. He knew the nature and extent of his back injury in 1978. The plaintiff also knew the nature and extent of his urinary and bowel problems and that they were caused by the accident by 1983. The material fact relied upon was that he did not know that he was suffering a psychiatric condition of PTSD and major depression until October 1995. These claims all fall outside the threshold period stipulated by s 23A and must fail. It is not necessary that s 23A should be considered in light of Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1 (see Hickey).
19 The defendant does not dispute that the plaintiff has a real cause of action. It is my view that the appropriate order for costs is that costs be costs in the cause.
20 The court declares that:

(1) By reason of s 5(1A) of the Limitation of Actions Act 1958 (as amended) the plaintiff’s claim for PTSD and depression which arose from an accident which occurred on 2 November 1972 are not statute barred.

21 The court orders that:

(1) Costs be costs in the cause.

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Last Modified: 06/30/2000